ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20160017659 APPLICANT REQUESTS: * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 23 February 1986, from the restricted folder of his Official Military Personnel File (OMPF) * reimbursement of $319.00 in pay with interest from 23 February 1986 to the present * an upgrade of his general discharge under honorable conditions to honorable * the right to consult with and hire an attorney, if necessary APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 4187 (Personnel Action), dated 28 April 1986 * DA Form 2627, dated 23 February 1986 * Memorandum, Headquarters, III Corps and Fort Hood, Fort Hood, TX, dated 1 August 1986, subject: Recommendation for Separation Processing under the Provisions of Chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) * Memorandum, Company C, 3rd Battalion, 41st Infantry Regiment, 2nd Armored Division, Fort Hood, TX, dated 1 August 1986, subject: Notification to Soldier of Initiation of Administrative Separation Action, Notification Board Procedure, Section II, Chapter 2, Army Regulation 635-200 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 2 January 1997 * Case Report and Directive, Army Council of Review Boards, dated 5 December 1997 * Letter, Army Discharge Review Board, dated 10 December 1997 * Presentence Investigation Report, Nevada Department of Public Safety, dated 12 May 2014 * Applicant's Statements, dated 3 October 2016, 20 October 2016, 9 January 2017, 11 January 2017, 14 January 2017, and 19 January 2017 (Due Process Violation) * Applicant's Statements, 24 October 2016, 6 November 2016, 25 November 2016, 27 May 2017, 20 August 2017, 22 August 2017, 23 August 2017, 3 December 2017, 4 December 2017, 14 February 2018, 16 April 2018, 25 June 2018, 22 July 2018, 10 August 2018, 10 February 2019 * Letter, Counsel, dated 29 August 2017, subject: Department of Veterans Affairs (VA) Claim * Enlargement of Time, Applicant, dated 4 December 2017 * Letter, Counsel, dated 12 March 2018, subject: Case Notes (Applicant) * Letter, Dr. B____ V____, Independent Medical Evaluations, Superior, CO, dated 14 June 2018 * Privacy Act Waiver, G____ W____ and B____, Law Corporation, dated 16 August 2018 * Remand, VA, dated 24 January 2019 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code; Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * the U.S. Army failed to provide the chain of custody evidence for his first positive urinalysis for tetrahydrocannabinol (THC) * his rights have been violated without the chain of custody evidence log and he has suffered an injustice * as far as he knows, he pled guilty to someone else's urinalysis results * he would not have pled guilty to someone else's urinalysis * he would have appealed the findings and submitted additional matters in his record of proceedings under Article 15, Uniform Code of Military Justice (UCMJ) * he also would have provided a statement in his own behalf when he was notified by his commander of initiation of his separation * he questions how the urinalysis results show he wrongfully used marijuana between 14 October 1985 and 14 November 1985 * he questions where the chain of evidence documentation is for the first urinalysis * the Department of Veterans Affairs (VA) has the proof of chain of custody for the second urinalysis * he could have stayed in the U.S. Army and finished his contractual obligation and would have received an honorable discharge * the DA Form 4187, dated 23 February 1986, shows the wrong social security number and should be removed from his records * his hardship started when he left to go overseas * he received harassment from his squad leaders and was transferred to a different platoon * his girlfriend told him she found another love who was one of his best friends * he contemplated suicide – he turned to drugs * he got back on track to being a straight and stalwart Soldier until the incident after the bombing of the Berlin Disco on 4 April 1986 * he and two other Soldiers were performing off-post guard duty at a post exchange when a hostile individual tried to kill them with his vehicle by trying to plow through a concrete barricade checkpoint * he was in shock after the incident, shaking violently and uncontrollably * the mental health condition he has now is due to that incident * this is when the second urinalysis was conducted * he did smoke hash, but not on a daily level, just once in a while * he drank approximately one 12-pack every day with recreational use of THC in between * he has been diagnosed with post-traumatic stress disorder (PTSD) by his psychiatrist * he experienced a lot of anger and anxiety, drug abuse during and after the Army, relationship problems – he is single, has no children, has had 1,000 girlfriends or more – he is impatient, irritable, and even questions life itself * he has tried to kill himself a few times * he is far from being well after this incident * he has been in and out of prison * he served his country and has gone too long without help for his problem that stems from the life-threatening incident * he is in the process of filing a disability claim for service-connected PTSD * his pattern of misconduct was the first symptoms of his PTSD 3. He enlisted in the Regular Army on 5 March 1985. He completed basic training and advanced individual training, and was awarded military occupational specialty 11B (Infantryman). 4. He was assigned to Company C, 3rd Battalion, 41st Infantry Regiment, 2nd Armored Division (Forward), Germany, on 25 June 1985. 5. On 5 September 1985 he was promoted to private two/E-2. 6. On 9 January 1986, his commander directed his enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). In the ADAPCP Client Intake Record, he indicated he used a cannabis product 3 days ago, he uses it two times a week, and he used it prior to joining the military. Item 20 (Client's Disciplinary Record – Drug or Alcohol Related) shows he was pending action under Article 15, UCMJ. 7. On 3 February 1986, he received nonjudicial punishment for wrongfully using marijuana sometime during the period 14 October 1985 through 14 November 1985, being disrespectful in deportment toward a noncommissioned officer (NCO) on or about 28 January 1985 by making sarcastic remarks and gestures while the NCO was giving a block of instruction to his platoon, and willfully disobeying a lawful order from an NCO on or about 29 January 1986. His punishment included reduction to the rank/grade of private/E-1, suspended until 19 September 1986, and forfeiture of $319.00 pay. He did not appeal the finding or punishment. His commander directed placement of the DA Form 2627 in the restricted folder of his OMPF. 8. His records do not contain a DA Form 5180-R (Urinalysis Custody and Report Record) for the urinalysis in support of the aforementioned nonjudicial punishment. There were no provisions for filing a DA Form 5180-R in a service member's OMPF. 9. On 6 February 1986, he received written counseling based on a positive urinalysis and showing disrespect to the chain of command. He was counseled about receiving an early separation from the service and informed he was being transferred to another platoon to give him a fresh start. The applicant acknowledged receipt and stated he agreed and would do what it took to be a Soldier and do his best to help his peers. He stated he always did what he was told to do and he couldn't wait to go back to training. 10. On 22 April 1986, his prior suspension of punishment was vacated for failing to go at the time prescribed to his appointed place of duty without authority on or about 20 April 1986. He was reduced to private/E-1 with an effective date of 23 February 1986. 11. The DA Form 4187, dated 28 April 1986, correcting a previously issued DA Form 4187 to show he received field-grade nonjudicial punishment under Article 15, UCMJ, on 19 September 1985. His social security number is shown as XXX-6X-XXXX instead of XXX-5X-XXXX. 12. The DA Form 5180, dated 11 June 1986, shows he tested positive for THC. The reverse side of the DA Form 5180 recorded the chain of custody. 13. On 16 June 1986, he received written counseling for testing positive for THC (second offense). He was informed elimination proceedings under the provisions of Army Regulation 635-200, chapter 14, would be initiated as soon as practicable upon his arrival at Fort Hood. The applicant signed the General Counseling Form and concurred with the information as being accurately reflected in the counseling session.? 16. On 17 June 1986, the ADAPCP Clinical Director responded to the applicant's commander's request for information pertaining to his rehabilitation activities wherein he stated: * the applicant's commander received notification that the applicant received a second positive urinalysis for cannabis * Army Regulation 600-85 (ADAPCP), interim change 104, states Soldiers who are identified as illegal drug abusers in two separate instances must be processed for separation * he recommended that all documents be transported to Fort Hood and that processing action take place there since the battalion was rotating within 2 weeks 17. On 1 August 1986, his company commander notified him of his intent to initiate separation action against him for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, based on two separate positive urinalysis test (THC) instances. He acknowledged receipt of notification the same date. 18. He consulted with legal counsel on 1 August 1986 and was advised of the basis for the contemplated separation action for patterns of misconduct, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He indicated: * he did not waive his rights to counsel * statements in his own behalf were not submitted * he understood that a general discharge under honorable conditions is the least favorable characterization of service he might receive * he could expect to encounter prejudice in civilian life if a general discharge under honorable conditions were issued to him * he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after his discharge 19. On 1 August 1986, his company commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b. He stated the applicant was totally unsuited for military duty due to his repeated misconduct and his rehabilitation efforts were evaluated as a failure by the Counseling Center. 20. On 5 August 1986, he received nonjudicial punishment for failing to go at the time prescribed time to his appointed place of duty in three separate occurrences on or about 18 July 1986, failing to go at the prescribed time to his appointed place of duty on or about 21 July 1986, and willfully disobeying a lawful order from an NCO. The applicant did not appeal the finding or punishment. His punishment included forfeiture of $319.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty. His commander directed placement of the DA Form 2627 in the performance folder of his OMPF.? 21. On 19 August 1986, the Commander, Headquarters, 2nd Brigade, 2nd Armored Division, Fort Hood, approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14. He indicated the applicant was deemed to have no potential for useful service under conditions of full mobilization. He directed issuance of a General Discharge Certificate. 22. He was discharged on 27 August 1986 for misconduct – pattern of misconduct – under the provisions of Army Regulation 635-200, paragraph 14-12b. He completed 1 year, 5 months, and 23 days of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions. 23. On 5 December 1997, the Army Discharge Review Board denied his request for an upgrade of his discharge to honorable. The board determined he was properly and equitably discharged. 24. On 14 June 2018, he obtained an independent psychological medical evaluation from Dr. B____ V____, wherein he stated the applicant fits the Diagnostic and Statistical Manual of Mental Disorders (DSM), fifth edition, criteria for PTSD. Dr. V____ stated his PTSD is at least as likely as not incurred in or caused by the traumatic experience that occurred during his service in Germany and opined his symptoms fit the VA disability rating of 100 percent. 25. On 24 January 2019, the VA Board of Veterans' Appeals remanded the applicant's appeal for entitlement to service connection for PTSD and a bilateral foot condition. a. The board noted the applicant appealed the December 2015 and March 2017 rating decisions by the Agency of Original Jurisdiction denying service connection for PTSD and a bilateral foot condition. The board further noted: In support of his claim, the Veteran submitted an opinion from a private psychologist diagnosing PTSD based on the alleged guard duty incident in Germany. Governing regulation provides that if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor; in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (emphasis added) [Title 38, Code of Federal Regulations, section 3.304(f)(3)]. In the instant case, the opinion submitted by the Veteran was provided by a private provider and not a VA psychologist or psychiatrist as required to trigger the provisions of 38 C.F.R. § 3.304(f)(3). An opinion from a VA psychiatrist or psychologist was not obtained. As such, remand is necessary to obtain an opinion from a VA psychologist or psychiatrist as to the etiology of the Veteran's claimed acquired psychiatric disorder. b. The board remanded an examination with a psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The evidentiary record, including a copy of the remand, must be made available to and reviewed by the psychiatrist or psychologist. The board directed readjudication of the claim after the examination is completed to the extent possible. If any benefit sought remains denied, provide the veteran and his representative with a supplemental statement of the case and return the case to the board. 26. The Army Review Boards Agency Staff Psychologist rendered a medical advisory opinion, dated 4 April 2019. Based on her review of the available documentation, the applicant's records did not support the existence of a PTSD condition or another boardable behavioral health condition. There was a lack of information to determine if a mental disorder existed during the applicant's period of service. 27. The applicant was provided a copy of this advisory opinion on 15 April 2019 and given an opportunity to comment and/or submit a rebuttal. The applicant provided the evaluation by Dr. V____ performed on 14 June 2018 in support of his diagnosis of PTSD. 28. The Army Review Boards Agency Staff Psychologist rendered a secondary medical advisory opinion, dated 10 June 2019, wherein she stated: * although the applicant provided an evaluation diagnosing PTSD, the basis and rationale for the diagnosis was supported by incorrect and misleading information, raising validity concerns * the referenced 2003 diagnosis and treatment, as well as the VA Compensation and Pension Examination from 20 March 2019, are unavailable for review * the applicant had a pattern of misconduct starting in adolescence that continued in service and before the referenced April 1986 bombing * post-service, the applicant continues to engage in offenses that are not a natural progression or normal sequel of PTSD * the applicant's pattern of misconduct is more consistent with a personality organization than a major mental disorder ? * current documentation indicates it is more likely than not the applicant has a characterological disorder and this underlies the misconduct leading to his separation * a characterological disorder does not mitigate the basis for separation 29. The applicant was provided a copy of this advisory opinion on 17 June 2019 and given an opportunity to comment and/or submit a rebuttal. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply liberal consideration. The Board considered the PTSD diagnosis he provided, the advisory opinion and his response, the subsequent review of his response and the conclusions of the advising official. The Board concurred with the conclusions of the advising official regarding the relation between the condition and his misconduct. The Board determined that the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 23 February 1986 was not mitigated by any condition or experience, was not in error or unjust and should remain in the applicant’s restricted folder. As a result, the Board found that the return of the associated forfeiture with interest was not warranted. 2. The Board found insufficient evidence of mitigating factors for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board determined, based on a preponderance of evidence to include the advisory opinion, that the character of service the applicant received at separation was not in error or unjust. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): not applicable. ? REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. Paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) states the original DA Form 2627 will be filed in the Soldier's OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the OMPF will be made by the imposing commander at the time punishment is imposed. 3. Army Regulation 640-10 (Individual Military Personnel Records) in effect at the time, was the sole authority for filing documents in the OMPF. The instructions stated to file the DA Form 2627 in the OMPF in accordance with Army Regulation 27-10. 4. Army Regulation 600-85 (ADAPCP), in effect at the time, prescribed policies and procedures needed to implement, operate, and evaluate the ADACP. Urine testing would be accomplished in a manner and under circumstances conducive to the preservation of human dignity. The DA Form 5180-R (Urinalysis Custody and Report Record) would be forwarded with the specimens. Local reproduction of the Urinalysis Custody and Report Record Form was authorized. The testing laboratory would retain the original and return a certified copy to the submitting unit. Interim change 104 provided that Soldiers who were identified in two separate instances occurring since 1 July 1983 as illegal drug abuser would be processed for separation from the service. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.? c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12c stated members were subject to separation for commission of a serious military or civil offense if the specific circumstances of the offense warranted separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts- Martial. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 6. The DSM, chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. 7. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 8. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 9. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 10. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160017659 2 1